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Report No. 3

Other suits relating to immovable property

131. Articles 136-144.-

Article 136 provides for a suit by a purchaser at a private sale for possession of immovable property when the vendor was out of possession at the date of the sale. The time of 12 years is counted from the date when the vendor was first entitled to possession. In other words, the purchaser and the vendor will be subject to the same period of limitation. Similarly, Article 137 provides for a suit by a purchaser under an execution sale when the judgment-debtor was out of possession at the date of the sale. Limitation is counted from the time when the judgment-debtor became entitled to possession. If, however, the judgment-debtor was in possession at the date of the sale, Article 138 provides that a suit' should be instituted by the purchaser within 12 years from the date when the sale becomes absolute.

All these are in substance suits based on the title of the predecessor-in-interest of the purchaser whether under an ordinary purchase or execution sale. Under Articles 136 and 137 time is made to run from the moment when the vendor or the judgment-debtor is first entitled to possession. Article 138 applies in cases where the judgment-debtor was in possession at the date of the sale and time starts when the sale becomes absolute. These suits may be left to be governed by the new Article corresponding to Article 144 by which we propose to provide a period of limitation for all suits for possession based on title. Though the definition of 'plaintiff' in the Limitation Act includes a person from or through whom the plaintiff derives his right to sue it is desirable to add a suitable explanation to the new Article in order to make the position clear.

132. Articles 142 and 144 have introduced a good deal of confusion it the law relating to suit for possession by owners of property. The law as it stands whether in a suit under section 9 of the Specific Relief Act or in one covered by Article 142 seems to favour a trespasser as against an owner. The anomaly is due to the decisions which have held that in an ejectment action by the owner of property it is not sufficient for him to establish his title but if he has averred in his plaint original possession and subsequent dispossession or discontinuance of possession, he should go further and establish that his title was subsisting at the date of suit, in the sense that he was in possession of the property within 12 years before the date of the institution of the suit.

That Article 142 applies to a suit by the owner of the property as well as a person suing merely on the basis of a possessory title is the view taken by some courts [vide the Full Bench decisions in Official Receiver, E. Godavari v. Govindaraju, ILR 1940 Mad 1953 and Bindhyacval Chand v. Ram Gharib, 57 All 278 while others restrict its applicability to a suit based on a possessory title alone [vide Jaichand Bahadur v. Girwar Singh, 41 All 669. Mt. Jijibai v. Zabu, 150 IC 679 (Nag) and Kanhaiyalal v. Girwar, 51 All 1042 A person who is the owner of the property when he sues for recovery of possession has thus to establish not only his title but also that he was in possession of the property within 12 years if he frames his plaint as one for possession after dispossession.

133. The decision of the Privy Council in Agency Co. v. Short, (1883) 13 App Cas 793 which was given under an analogous provision in 3 and 4 William 4, c. 27 (Act III of 1837 in the Colony of New South Wales) finally settled that the rule of prescription should be applied not to cases of want of actual possession by the plaintiff but to cases where the plaintiff has been out of possession and another was in possession for the prescribed time. Two conditions must be satisfied. There must be both an absence of possession by the person who had the right and actual possession by another, whether adverse or not, to bring the case within the statute.

The Supreme Court of New South Wales took the view that the period of prescription continued to run notwithstanding that the intruder had abandoned the land long before the expiry of 20 years from his first entry and no other person had taken possession of such land and that the owner should prove, even in such a case, that there was actual entry by him after the intruder had abandoned possession and vacated the land. It was this view that was negatiVed by Lord MacNaughten in the Privy Council.

134. The language in column 1 of Article 142 does not refer to title and it speaks only of a suit for possession in which the plaintiff claims that while in possession of the property, he has been dispossessed or has discontinued the possession. The words "dispossession" and "discontinuance" have a particular significance in law. Dispossession occurs where a person comes in and puts another out of possession while discontinuance of possession takes place where the person in possession goes out and another person takes possession.

It is not, therefore, enough to constitute 'discontinuance' that a person goes out of possession; this, should be followed by the possession of another person. The words dispossession and discontinuance are used in the Article in this sense. The view taken in the Full Bench decisions cited above does not accord with this interpretation of the Article and has led to very unjust consequences. In the very Full Bench decision affirming this rule1, Leach C.J. observed:

"it may be a hardship that a person who proves a title to property should lose it to a trespasser unless he can also show that he has been in possession within 12 years of suit, but that is what the Limitation Act says and the court must administer the Law." We propose that this hardship should be remedied. If the defendant wants to defeat the right of the plaintiff he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within 12 years. The inequity of this requirement is illustrated by the following example:

If A, B and C are independent and successive trespassers on the property and the suit for possession is brought by the true owner against C, it must fail unless the plaintiff proves his possession within 12 years, though the last trespasser C, was not in possession except for a short period.

1. ILR 1940 Mad 953 (962).

135. In our opinion, Article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff's prior possession no doubt entitles him to protection against a trespasser though not against the true owner.

The true owner's entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law must undoubtedly step in and give relief to the plaintiff.

As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under Article 142 is that the true owner must prove that he had a subsisting title on the date of suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, Article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession. Article 142 may, therefore, be amended as follows:

"For possession of immovable property based on possessory title when the plaintiff while in possession of the property has been dispossessed-12 years from the date of dispossession."

136. The new Article to which reference has already been made will govern suits for possession of immovable property or any interest therein based on title, the period being 12 years from the time when the possession of the defendant becomes adverse to the plaintiff. The Article as amended will cover cases at present falling under Articles 136, 137 and 138. Articles 140 and 141 may be deleted and a suitable explanation may be added. Articles 136, 137, 138, 140, 141 become unnecessary. Article 143 relating to a suit for possession on forfeiture or breach of condition should, in our opinion, be retained as it is. Some complications may result if this Article is merged in the general Article relating to suits for possession based on title.

Limitation Act, 1908 Back

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